State lawmakers long ago exempted themselves from Open Records Act transparency laws that most other government officials have to follow.

Posted: 5:30 p.m. Wednesday, December 05, 2018

State lawmakers have long passed laws that don’t apply to them, but a new case before the Georgia Court of Appeals raises questions about one of their most controversial outs: an exemption from following the Open Records Act transparency statute that most other government officials have to obey.

A three-judge appeals court panel heard arguments Wednesday in a lawsuit that began when state officials denied records to a nonprofit libertarian public interest law group called the Institute for Justice. The institute was looking into the General Assembly’s 2012 decision to regulate the practice of music therapy.

Among other things, the group produces reports on how lobbyists for professions often persuade state legislatures to pass licensing and regulation laws to limit competition.

However, once the group sought public records on how the law was created, it ran into a roadblock reporters and plenty of Georgia residents have long known about: the General Assembly — which receives more than $43 million in taxpayer funding each year and has the ability to regulate the health, taxes and professions of Georgians — and its offices don’t have to follow state transparency laws.

A Fulton County judge came to that same conclusion last year, throwing out the institute’s lawsuit, citing a 43-year-old court ruling in saying that sunshine laws don’t apply to the General Assembly, its committees and its offices, such as the legislative counsel or budget offices. The group appealed the judge’s decision to the Court of Appeals.

“This is important because the whole point of public records acts is transparency in government, being able to find out what the government is doing, what information they have when they are considering making decisions,” said Dana Berliner, the litigation director for the Institute for Justice. “This is a fundamental right of the citizenry of states.”

Alexander Harris, a lawyer representing the institute, told members of the appeals panel that the case was about whether the agencies under the General Assembly are exempt from the Open Records Act, not lawmakers themselves. But making those offices subject to the Open Records Act would give the public access to records about what might lead legislators to the decisions they make and any correspondence between elected officials and state staffers.

Such records are already open for state agencies and most other governments in Georgia. But Harris’ argument led members of the appeals court to ask whether opening up legislative offices to transparency laws would mean now-exempt judicial offices would also face more scrutiny.

“If we were to agree to a reading of your definition of ‘office,’ would the (court) clerk’s office and other offices be subject to the act?” Judge Carla Wong McMillian asked.

Jeff Lanier, deputy legislative counsel, told them they could be. So the court has a personal stake in the issue.

Lanier said offices attached to the General Assembly — such as his office, the chamber budget offices, the chamber clerks’ offices — are a part of an exempt body that can’t function without them.

If the General Assembly is exempt from sunshine laws, so is its staff, according to the state’s legal argument.

The House and sometimes the Senate put out meeting agendas in advance, and both chambers post their state budget plans on the General Assembly website after they have been approved by their Appropriations committees.

Lawyer-legislators have been heavily criticized for using the state’s “legislative leave” law to get court cases delayed, sometimes for years, by claiming they are too busy with their duties to go to court. Lawmakers in the insurance industry and legal profession are exempt from mandatory continuing education. And state law has, for more than 200 years, prohibited lawmakers from being arrested during sessions of the General Assembly or while in its committees, or while lawmakers are traveling to either one.

Constituents versus special interests

On the open records exemption, lawmakers have long said they don’t want correspondence made public that contains sensitive information from constituents. But that also allows lawmakers to shield the frequent contact they have with lobbyists or other special interests seeking legislation or state funding.

That’s what makes the Institute for Justice lawsuit important, the group says.

“Certainly you want the Legislature, which is subject to lots of different pressures, to be covered by the Open Records Act so you can find out what pressures they are subject to,” Berliner said. “There are going to be hundreds of such examples of pressure. This is a critical case in deciding if the public can find that out.”

Another government accountability group, the Cause of Action Institute, filed a brief in support of the lawsuit, saying residents in 38 states have access to legislative records. The group’s brief argues that Georgia law does not explicitly exclude the General Assembly from the Open Records Act.

Fulton County Superior Court Judge Shawn Ellen LaGrua wrote last year that the “court finds that no express provision of law exists subjecting the General Assembly to the provisions of the Open Records Act,” citing a 1975 Georgia Supreme Court ruling that neither the Legislature nor its committees or offices under it are subject to sunshine laws.

“Ultimately, whether the legislative branch is subject … is a matter of policy for the General Assembly to determine,” she wrote.

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About the Author

JAMES SALZER
James Salzer has covered state government and politics in Georgia since 1990.